Subject:

Questions: (1)

Do the General Statutes of North Carolina preclude the Forensic Unit at Dorothea Dix Hospital from forwarding a copy of the full capacity to proceed report of a defendant in a criminal action to the appropriate district attorney upon the latter's request or upon the Unit's own initiative?

(2)

In order to authorize this action, is it necessary that the judge's order directing the psychiatric evaluation provide that the district attorney shall receive a copy of this report?

Conclusions: (1)

Yes, except for the covering statement for the report.

(2)

In order to permit this action it must be authorized in such order or in a subsequent order by the judge.

What is basically involved here is the question of the confidentiality of a medical report and the applicability of the physician-patient privilege. It should be noted that the physician-patient privilege was not recognized by common law. It is strictly a creature of statute. 44 ALR3d 24, 45. Traditionally, this privilege has not been held to appertain to court ordered psychiatric evaluations designed for use in the criminal prosectuion of a defendant. See State v. Case, 253

The language of G.S. 122-8.1 is consonant with that tradition. That statute deals with the disclosure of information or records by physician, psychiatrists, etc., at institutions operated by the North Carolina Department of Human Resources. After restrictive language regarding the disclosure of information or records of patients in normal situations, the following language is found therein:

"Provided that where a person or persons are defendants in criminal cases and a mental examination of such defendants has been orderd by the court, the Department of Human Resources through its agents and officers may transmit the results of the report of such mental examination to the clerk of said court and to the district attorney or prosecuting officer and to the attorney or attorneys of record for the defendant or defendants."

G.S. 15A-1002 contains provisions dealing with the procedures to be taken when the question arises as to the mental capacity of a defendant to proceed with trial in a criminal case. As pertinent here, that statute provides as follows:

"(b) When the capacity of the defendant to proceed is questioned, the court:

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(2) May commit the defendant to a State mental health facility for observation and treatment for the period necessary to determine the defendant's capacity to proceed. In no event may the period exceed 60 days. The superintendent of the facility must direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who must bring it to the attention of the court. The report is admissible at the hearing.

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(d) Any report made to the court pursuant to this section shall be forwarded to the clerk of superior court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. A copy of the full report shall be forwarded to defense counsel, or to the defendant if he is not represented by counsel. A copy of the covering statement shall be forwarded to the district attorney. Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court. Any report made to the court pursuant to this section shall not be a public record unless introduced into evidence."

Subsection (d) is entirely new language added by the 1977 session of the General Assembly; it became effective on July 1, 1977. In view of the specific language of this later enacted statute, any conflict between it and G.S. 122-8.1 must be resolved in its favor. Thus, absent an order from the judge, only a copy of the covering statement, with contents as described, may be forwarded by the Forensic Unit to the district attorney until such time as the report has been introduced into evidence.

No doubt, however, the General Assembly recognized that earlier release of the full report to the district attorney will quite often serve the desirable end of providing speedy trials to defendants in fair, efficient proceedings conducted by informed, well-prepared counsel having timely access to all available material, relevant and competent evidence. Therefore, the language of G.S. 15A-1002(d) clearly permits the court, using its discretion in an individual case, to direct that a copy of the full report be given to the district attorney prior to the time it has become a public record.